Contents

Background

This amendment to the United States Constitution provides that any change in the salary of members of Congress may only take effect after the next general election. Sometimes referred to as the "Congressional Compensation Amendment of 1789," as the "Congressional Pay Amendment," and as the "Madison Amendment," it was intended to serve as a restraint on the power of Congress to set its own salary—an obvious conflict of interest. Since its 1992 adoption, however, this amendment has not hindered members of Congress from receiving nearly annual pay raises, characterized as "cost of living adjustments" (COLAs) rather than as pay raises in the traditional sense of the term. The Federal courts have ruled in cases brought under the amendment that a COLA is not the same thing as a pay raise. Hence, members of Congress have been able to enjoy increases in compensation without triggering the restrictions which this amendment seeks to impose. It should be pointed out that it is Congress which determines whether Federal judges will receive an increase in their salaries, the only restriction being that Congress is forbidden to ever reduce judicial compensation. Additionally, retirement benefits of Federal judges are linked with those of members of Congress.

This amendment was actually suggested by a number of states. During the 1788North Carolina convention assembled to consider the original Constitution itself, the following amendment, among others, was requested of Congress:

The laws ascertaining the compensation of senators and representatives, for their services, shall be postponed in their operation until after the election of representatives immediately succeeding the passing thereof; that excepted which shall first be passed on the subject.

Virginia, in its 1788 ratification convention, recommended the exact same language that North Carolina had suggested.

And, New York, in its 1788 ratification convention, urged Congress to consider the following verbiage:

That the Compensation for the Senators and Representatives be ascertained by standing law; and that no alteration of the existing rate of Compensation shall operate for the Benefit of the Representatives, until after a subsequent Election shall have been had.

Curiously, in 1816—more than a quarter century after Congress had officially submitted the amendment (and eleven others) to the state legislatures for consideration—the Massachusetts General Court expressed its desire for an amendment to the Constitution worded almost exactly as it was offered by Congress in 1789. Reportedly, the legislation embodying the recommendation was approved by the Massachusetts House of Representatives on a vote of 138 to 29. Sometime in either December of 1816 or in early 1817, the Kentucky General Assembly did the same thing and in either 1817 or during January of 1818, Tennessee's lawmakers followed suit.

From 1789 to 1791, the compensation proposal was ratified by legislators in only six states—Maryland, North Carolina, South Carolina, Delaware, Vermont and Virginia—out of the eleven then required. As more states entered the Union, the ratification threshold increased. In 1873—more than 80 years after Congress offered it to the nation's state lawmakers—the Ohio General Assembly ratified the compensation restriction.

Ratification completed

The proposed amendment was again largely forgotten until 1982, when a Texas university student, Gregory Watson, rediscovered it. The push for ratification began in earnest, and the amendment was finally ratified a decade later on May 5, 1992, when it was approved by the legislature of Alabama, the 38th state to assent, there being 50 states in the Union at the time. At that point, it became the Constitution's 27th Amendment. Under the 1939 ruling of the United States Supreme Court in the landmark case of Coleman v. Miller, (Template:Ussc) any proposed amendment (for which Congress does not specify a ratification deadline) remains pending business before the states and the states may continue to consider that amendment regardless of that amendment's age.

For quite some time, it had been mistakenly believed that ratification on May 7, 1992, by the Michigan Legislature propelled the 27th Amendment into the U.S. Constitution. However, when the June 1792 ratification of all twelve amendments by the Kentucky General Assembly during that commonwealth's initial month of statehood later came to light, it was quickly realized that the 27th Amendment's incorporation into the Constitution was actually finalized two days earlier than previously thought—and by the state (Alabama) whose legislature acted immediately prior to Michigan's. Possibly unaware of the ratification actions taken in 1792, Kentucky lawmakers ceremonially approved the amendment a second time, nearly 204 years later in 1996, and almost four years after the amendment had already been made part of the nation's highest legal document. In 1989, the North Carolina General Assembly likewise re-ratified the amendment, having—as noted above—first adopted it two centuries earlier in 1789.

Congressional acceptance of ratification

Notwithstanding the Coleman v. Miller decision, there were calls in some quarters to nevertheless mount a legal challenge to the 27th Amendment's irregular ratification. However, Coleman made clear that only Congress has the authority to determine whether an amendment has—or has not—been properly made part of the Constitution. The courts would not involve themselves in such a "political question," the Justices asserted.

In accordance with the Coleman ruling—and in keeping with the precedent first established in the 1868 ratification of the 14th Amendment—both houses of the 102nd Congress, on May 20, 1992, acting separately, adopted concurrent resolutions agreeing that the 27th Amendment was indeed validly ratified, despite the unorthodox period of more than 200 years for the completion of the task. But neither body adopted the concurrent resolution of the other.

States that did not ratify

The Pennsylvania House of Representatives approved the amendment on January 28, 1992, but the legislation died in committee in the Pennsylvania Senate. The legislatures of Massachusetts, Mississippi, Nebraska (rejecting the amendment in 1987), and New York did not ratify the amendment. The fact that New York did not ratify is interesting to some observers in that—as noted earlier—New York (in 1788) was among those states that specifically requested an amendment similar to this.

References

Congressional Research Service. (1992). The Constitution of the United States of America: Analysis and Interpretation. (Senate Document No. 103–6). (Johnny H. Killian and George A. Costello, Eds.). Washington, DC: U.S. Government Printing Office.